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BY ARTHUR S. LEONARD | The standard rule in family law is that the legal spouse of a woman who gives birth to a child is presumed to be the child’s legal parent. Traditionally, that meant that when a married woman gave birth, her husband was accepted as the father. The doctrine was developed to ensure that children were not subjected to the legal status of illegitimacy.

In some states the parental presumption is incontestable, while in New York and elsewhere it can be overturned if evidence of another man being the biological father is produced.

Applying this presumption and its traditional underpinnings to a same-sex married couple is not a precise fit, and one court in New York has now ruled that a man has the right to prove he is the father of a child born to a women married to another woman at the time she gave birth. The man went to court hoping to win a paternity order, which would effectively cut the biological mother’s wife out of the picture in terms of parental claims.

New York court gives biological father preference over mother’s wife

The case, decided on October 14 but not reported in the New York Law Journal until last month, has an unusual set of circumstances. Ms. C and Ms. S married in New Hampshire in 2010, but their marriage has endured several separations and they are now seeking to divorce. According to the opinion by Monroe County Supreme Court Justice Joan Kohout in Rochester, during a separation that began in late 2011, Ms. C began a relationship with Mr. M., which she has acknowledged led to her becoming pregnant with J.C. In fact, after the infant was born, by which time Ms. C was back together with her wife, she allowed the biological father two visits with their daughter.

Shortly after the second visit, Mr. M. filed his paternity suit, seeking genetic testing to confirm J.C. is his daughter and also to deny Ms. S the right to claim access to the child other than that afforded voluntarily by the biological mother.

Ms. S was with her wife when she gave birth to J.C., “selected the child’s name and signed her birth certificate,” according to Kohout’s opinion. Even after the couple separated again, Ms. C continued to allow Ms. S contact with the child and she supports her estranged wife’s desire to be treated as J.C.’s mother. Both women testified that Ms. S has “a close relationship” with the child.

“Ms. C. takes the position that Mr. M. should be excluded from J.C.’s life,” wrote the judge. “Although she has never denied that he is J.C.’s biological father, she argues that her wife is the lawful and proper parent of J.C. She testified that she wants her ‘wife to have rights to my daughter as she has been.’”

Ms. S. never legally adopted J.C., but the couple argue that step was unnecessary given the parental presumption typically accorded a biological mother’s spouse.

Kohout rejected the women’s arguments, specifically saying that marriage between two women changes the equation.

“With the advent of same-sex marriage, the role of the non-biological spouse, especially in a marriage of two women, requires a re-examination of the traditional analysis of the presumption of legitimacy,” the judge wrote. “Most of the cases to date concerning same-sex couples involve children born of artificial insemination where female spouses have planned together to raise the child.”

Kohout noted that sperm donors are usually anonymous so “there is no legal father.”

Responding to Ms. C’s argument about the parental presumption, the judge wrote, “the Marriage Equality Act does not require the court to ignore the obvious biological differences between husbands and wives.” Even though the 2011 law “requires same-sex married couples to be treated the same as all other married couples, it does not preclude differentiation based on essential biology.”

Kohout also precluded any other argument Ms. S could use to claim her rights as a parent, noting that the Court of Appeals, New York’s highest bench, has “repeatedly declined to expand the traditional definition of a parent beyond biological or birth parents and adoptive parents,” and has “rejected arguments that non-adoptive or non-biological third parties, such as Ms. S., should be grated parental status based on a claim of a close relationship with the child.”

Ms. S. has, at best, the status of a step-parent., the judge found, meaning she might be able to seek visitation rights under certain circumstances but not custody in preference to Ms. C and Mr. M.. The judge noted that Mr. M never took any steps to deny his paternity or surrender the rights that entails.

“Since Ms. S. never adopted J.C. and is not a biological parent, she does not fit within New York’s definition of parent,” Kohout wrote. “Thus, Ms. S. is not entitled to court-ordered custody or visitation with J.C., and any contact she has with J.C. is entirely by voluntary arrangement with Ms. C. Of course, there is nothing to prevent Ms. C. from continuing to permit Ms. S. to have a relationship with J.C.” That was, in fact, exactly what the court-ordered attorney representing the child’s interests recommended.

If Ms. C were to die or become incapacitated and unable to care for J.C., Mr. M. would hold all the cards in a dispute with Ms. S. over custody and visitation The failure of New York law to allow for the possibility that a child can have more than two legal parents at the same time leaves a gap in the rights of de facto parents such as Ms. S. Progressive legislation in California now recognizes the possibility of more than two parents in unusual cases. New York might consider the desirability of following suit.

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